Judge: Microsoft 'intransigence' forced breakup ruling

The judge who ordered Microsoft's breakup said this week that if the software giant weren't so bull-headed, it wouldn't be in its current predicament. Judge Thomas Penfield Jackson made some rare public comments about the company Thursday during a speech at an antitrust conference, stating that breaking up the company was never his "remedy of choice." Had the company simply supplied an adequate settlement offer, the trial could have ended at any time, he said. Instead, Microsoft was obstinate the entire time, even at the settlement table, exasperating the judge and federal mediators who were trying to cut a deal.

"I am full of admiration for the people whose imagination and industry built the enterprise known as Microsoft," Jackson said. But these same people so jealously guarded the kingdom that they had created, he says, that the public saw this as a battle between Jackson and Microsoft chairman Bill Gates, who is the public face of the company. "I believe it is vitally important to public confidence in the judiciary that my role be understood. I have never conceived of this case as a contest of wills between me and Mr. Gates," Jackson said. Gates was embarrassed at the trial when taped deposition showed him to be uninvolved in and unfamiliar with Microsoft's business affairs, a sharp contrast to his public persona. Gates says that he was simply following the advice of his legal counsel, offering only short answers and not volunteering information.

But Jackson places the blame for his decision firmly on the shoulders of Microsoft's leaders, especially Gates. "Microsoft, as it is presently organized and led, is unwilling to accept the notion that it broke the law or accede to an order amending its conduct," Jackson noted.

As for the breakup of Microsoft, however, Jackson said he doesn't have any opinion on whether the courts will uphold his decision. "Virtually everything I did may be vulnerable on appeal," he said, vaguely. Earlier this week, the Supreme Court ruled that the case should proceed normally through the Appellate Court and not be fast-tracked as the DOJ requested. Jackson notes that he was not excited about breaking up the company but that Microsoft's actions left him with little choice. "Microsoft's intransigence was the reason," he said. "The structural remedy was never my remedy of choice, and is not even so today. It was a last resort. It was always my preference that the market itself be allowed to rectify the dysfunction disclosed by the evidence, failing which a negotiated settlement was next best."

Interestingly, Jackson said that he doesn't see the Microsoft breakup as precedent setting. "Enterprises as formidable as Microsoft have been disabled by orders of American courts \[many times in the past\], he said. Indeed, Microsoft's arguments against a breakup closely mirror similar arguments that were made by the old AT&T before it was broken up; few would argue that the AT&T breakup was anything but beneficial to consumers, as it resulted in local and regional competition, with lower prices and expanded services

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